Brouster v. Fox

• Decision Date: 27 March 1906
• Citation: 117 Mo. App. 711,93 S.W. 318
• Parties: BROUSTER v. FOX et al.
• Court: Missouri Court of Appeals

93 S.W. 318

117 Mo. App. 711

BROUSTER v. FOX et al.

St. Louis Court of Appeals. Missouri.

March 27, 1906.

1. ASSAULT AND BATTERY—ACTION—INSTRUCTIONS.

In an action for assault and battery, defendants requested the court to instruct that instructions to the effect that defendants might be held liable for some other person's act in striking the plaintiff if they acted in concert with such other person or acted with a common design, did not mean that they might be held responsible merely because they might have been intending to strike or fight plaintiff at the time the other person was in the act of striking him, but that by acting "in concert" was meant that when the third person struck plaintiff the defendants, or some one or more of them, had an understanding with such other person in his plan, or were acting with him with knowledge of his purpose to do or cause the plaintiff such same or similar injuries which said person did to him. The court gave the instruction, modifying it by striking out "to do or cause the plaintiff such same or similar injuries which said person did to him," and inserting in lieu thereof, "or encouraging or inviting him by their conduct to act with them in doing bodily harm to plaintiff," and in another instruction the jury were told that neither of the defendants could be held on the theory that they acted in concert with the one who struck the blow, unless one or more of defendants had a common purpose with the third person. Held, that there was no error in the modification.

2. SAME—PROVOKING ASSAULT.

Though plaintiff assaulted defendant, defendant, after repelling the assault, was not justified in following up plaintiff, who was retreating, and further assaulting him for the purpose of chastisement.

3. SAME—QUESTION FOR JURY.

In an action for an assault and battery on a street car conductor by passengers, the difficulty having arisen from plaintiff's objection to defendants' conduct on the car, held, that the question whether defendants' attempt to drink beer on the car was offensive or improper was for the jury.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by Scott Brouster against George H. Fox and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

The action is for damages arising out of an assault and battery alleged to have been committed on July 26, 1902. The plaintiff was a conductor in charge of an electric car of the St. Louis, St. Charles & Western Railway Company en route from the city of St. Charles to St. Louis, Mo. On the night of the occurrence, a party numbering about 15 men of the Planing Mill Men's Association had been spending the evening at the residence of a friend, who was also a member of the association, about two miles west of the city limits. The party had purchased in the city and caused to be transported to the suburban home of their friend, several barrels of bottled beer and soda water, together with a supply of sandwiches, etc., and proceeded to such suburban home as a surprise party early in the evening; whereupon a table was laid and a luncheon had upon the lawn, and an enjoyable evening was spent by all concerned. Some drinking of soda and beer was indulged in. About 11:30 p. m. the party of 15 boarded the car on which plaintiff was conductor, for their homes in the city. All the evidence shows that four or five of the party had bottles of beer in their possession, and some were in the act of drinking when boarding the car. They were quite jolly. On the part of plaintiff it was shown that defendant McConnell and others were drinking and throwing or spilling beer in the car; that the plaintiff conductor quietly remonstrated with them therefor, saying: "Please do not throw beer around the car," and that it was against the rules of the company to permit drinking therein, requesting that they desist their boisterous conduct. There were 12 or more passengers aside from the party of mill men. Upon this first request of the conductor, the party desisted momentarily, but only to commence again, and the conductor made the same remonstrance a second time; whereupon defendant McConnell inquired what the conductor would do if they did not behave, and the conductor answered that he would stop the car and put them off. To this McConnell answered: "One of you put all of us off?" The conductor replied that if he could not do it, he could stop the car and procure assistance. McConnell answered: "We don't know whether you could or not." A gentleman of the party then said to the conductor: "It is all right; I will see that they behave." Thereupon the conductor rang the bell and started the car, which he had caused to be stopped during the conversation, and returned to the end of the car, taking up his small iron cash box which he carried in which to deposit or permit the passengers to deposit fares as collected, and returned to collecting car fares. The gentleman who had promised the good behavior of the party, commenced placing the fares in the box held by the conductor when some of the party again became boisterous, and commenced cursing and acting rude. The conductor turned around and said: "I thought you gentlemen were going to behave if you are going on," and at that time one Menown, sitting in the rear of McConnell and one of the party, said: (quoting from the conductor's testimony) "`Let me to the s____ of a b____; I will settle him,' and he got up and sprang at me with his fist, and I threw my head back like that, and hit him with my left hand, and there were two sitting in the seat—McConnell and I, don't know which one of the others was sitting to my right, and one of those struck me with his fist here, and it kind of knocked me back, and by that time there were five or six others all hitting at me, and I got back and two or three beer bottles went through the front window, and one through the side window of the car, and they crowded me back in the car, and I was laying down in the corner and had my legs over the seat this way, and a beer bottle struck me here—some fellow reached over the crowd and struck me with a beer bottle in his fist on the right side of the head." In this battery, the two defendants were active participants.

The testimony of the plaintiff and his witnesses tends to show that the parties, after making this joint assault upon the conductor, crowded him backwards into the corner of the car, knocked him down on the floor and across the seat, and inflicted severe injuries upon him with cut glass from the beer bottles and otherwise, with which they struck him, severely injuring his head and hand; that a number of the car windows were broken out by the throwing of the beer bottles through the same; that beer was thrown all over the car, and a box full of broken glass was picked up from the floor after the mêlée; that while this battery was being perpetrated upon the plaintiff, Menown ran to the rear of the car, pulled the trolley off the wire, turned out the lights, and enveloped the entire scene in darkness. The motorman, hearing the affray, opened the front door of the car, dragged the conductor out from under his assailants and off of the car in order, as he supposed, to save his life. While this assault was going on, however, the conductor was persistently fighting back as best he could, with his iron cash box, striking right and left at his assailants who were following him, and thereby inflicting serious injury upon several of their number. The testimony on behalf of the defendants, however, tended to show the altercation by words as above detailed, and that instead of Menown first assaulting the conductor, that the conductor commenced the assault by striking at Menown with his cash box, missing him, and striking young Fox, a son of the defendant Fox, in the head therewith, inflicting severe injuries, and from this on, struck right and left with his cash box at various members of the party as they arose out of their seats to overpower him; that in fact the conductor committed the assault first with the cash box, being provoked by the wordy war first had, and that all of the injuries which was inflicted upon him by the mill men were done in defense of members of their party who were being assaulted by the conductor with the cash box; that the only person who struck the conductor with a beer bottle was one Humber, a member of the mill men's party, who reached over the crowd while the conductor was backing, and still fighting with his cash box, and hit him over the head with the beer bottle, and thereby breaking it; that Humber did this in defense of his associates on whom the conductor was then using his cash box while retreating from the assault.

On the trial before a jury, the finding was for the plaintiff and a substantial recovery was allowed in actual as well as punitive damages. The defendants requested and the court very properly refused a peremptory instruction to find the issues for the defendants. On the part of the plaintiff, the court instructed the jury, first, to the effect that the plaintiff, as conductor, had the right, and it was his duty, to remonstrate against offensive and disorderly conduct on the car, and that if defendants persisted in such conduct, he had the right to order such of them as persisted therein, from the car, and if necessary, to eject such person or persons; and, further, that any words used by plaintiff in requesting them to desist from such conduct or in threatening to eject them from such car if they persisted in being rude, was no justification for an assault upon the plaintiff. And further, on plaintiff's behalf, the court instructed as follows: "(2) If the jury believe from the evidence that the defendants or either of them, either alone or with other persons present at the time, all acting in concert together, with the same common purpose or design, assaulted the plaintiff while the plaintiff was discharging his duties as a...